Bush and Congress Rebuked in Schiavo Case

The New York Times
March 31, 2005
Bush and Congress Rebuked in Schiavo Case
By ABBY GOODNOUGH and WILLIAM YARDLEY

PINELLAS PARK, Fla., March 30 - A federal appeals court in Atlanta refused Wednesday to reconsider the case of Terri Schiavo, with one of the judges rebuking President Bush and Congress for acting "in a manner demonstrably at odds with our founding fathers' blueprint for the governance of a free people."

Outside the hospice where Ms. Schiavo has gone almost two weeks without her feeding tube, the mood was quieter than in recent days. At one point her father, Robert Schindler, emerged to say that Ms. Schiavo looked good, given the circumstances, but the Rev. Jesse Jackson, who met with her parents for the second day in a row, later said he was urging them to accept her probably imminent death.

"They're hoping against hope but they know that you cannot live without food and water," Mr. Jackson said in an interview. "They are looking for every spark in the dark that could be her light. But these are very mature people, and they are looking at her real-life options."

Mr. Schindler and his wife, Mary, had asked the full United States Court of Appeals for the 11th Circuit on Wednesday to consider ordering their daughter's feeding tube reinserted. A three-judge panel declined to issue such an order last Friday, and after less than day's deliberation, the full court issued a 10-to-2 decision rejecting the latest request.

An emergency appeal the Schindlers filed with the Supreme Court Wednesday night, asking that Ms. Schiavo's feeding tube be reinserted while they made further appeals, was rejected. It was the sixth time the court declined to intervene.

The 11th Circuit court's decision, signed by Chief Judge J. L. Edmondson, was only a sentence long. But in a concurring opinion, Judge Stanley F. Birch Jr., appointed by the first President Bush in 1990, wrote that federal courts had no jurisdiction in the case and that the law enacted by Congress and President Bush allowing the Schindlers to seek a federal court review was unconstitutional.

"When the fervor of political passions moves the executive and legislative branches to act in ways inimical to basic constitutional principles, it is the duty of the judiciary to intervene," wrote Judge Birch, who has a reputation as consistently conservative. "If sacrifices to the independence of the judiciary are permitted today, precedent is established for the constitutional transgressions of tomorrow."

Judge Birch said he had not had time before now to consider the constitutionality of the law, which Congress passed and Mr. Bush signed before dawn March 21, because of "the rapid developments and sensitivities in this case." The 11th Circuit court considered and rejected several appeals from the Schindlers last week after Judge James D. Whittemore of Federal District Court in Tampa denied their motions.

In particular, Judge Birch wrote, a provision of the new law requiring a fresh federal review of all the evidence presented in the case made it unconstitutional. Because that provision constitutes "legislative dictation of how a federal court should exercise its judicial functions," he wrote, it "invades the province of the judiciary and violates the separation of powers principle."

David J. Garrow, a legal historian at Emory University who closely follows the 11th Circuit, said Judge Birch's opinion was striking because the judge was a conservative Republican, especially regarding social issues. Judge Birch wrote the ruling for a three-judge panel of the court last year unanimously upholding a Florida law that prohibits gay men and lesbians from adopting children.

"This is a Republican judge going out of his way to directly criticize the Congress and President Bush for what they've done," Mr. Garrow said.

Erwin Chemerinsky, a law professor at Duke University, said Judge Birch probably felt it important to address the constitutionality of the law because the opportunity might never arise again.

"When Terri Schiavo dies, this law expires because it was only about her," Mr. Chemerinsky said. "This raised an important constitutional issue that could come up again, and he's saying it's important that some judge be on the record about it."

Mr. Jackson returned to Woodside Hospice in Pinellas Park after meeting with Gov. Jeb Bush and state lawmakers earlier in Tallahassee. There, he pressed lawmakers to reconsider legislation the State Senate rejected last week that would outlaw the removal of feeding tubes from patients who had not left written instructions. Ms. Schiavo, who suffered severe brain damage in 1990, left no instructions. But a state judge accepted the testimony of her husband, Michael Schiavo, that on several occasions she had said she would not want to be kept alive artificially.

Mr. Schiavo, who has sought to remove his wife's feeding tube and let her die since 1998, has long battled with her parents, who believe she responds to them and could improve.

After meeting with Mr. Jackson in his office, Governor Bush praised him for lobbying on behalf of the Schindlers. Acknowledging the political differences between Mr. Jackson, a liberal Democrat, and many of the Schindlers' supporters, he described Mr. Jackson's efforts as "kind of like Nixon going to China."

Mr. Schiavo's lawyer, George Felos, arrived at the hospice Wednesday morning and stayed on the grounds all day, leading to speculation that Ms. Schiavo's death might be near. Yet in the early afternoon, Mr. Schindler told reporters that his daughter still looked good, bringing four relatives and friends who had seen her that morning to the microphones to back him up.

"I was pleasantly surprised by what I saw and encouraged," Mr. Schindler said of his morning visit with Ms. Schiavo. "She's still fighting, and we are still fighting for her."

Christine Jordan Sexton contributed reporting from Tallahassee, Fla., for this article.